Sex Offender Civil Commitment

Background

The first of these new SVP commitment laws was passed in Washington state in 1990 after a convicted sex offender who was recently released from prison abducted and brutally sodomized a 7-year-old boy. Washington's Community Protection Act of 1990 increased penalties for sex crimes and created stricter supervision for sexual offenders. It also contained the “Sexually Violent Predator Statute,” the nation's first law allowing for the civil commitment of SVPs following their criminal incarceration.

Currently, 17 states have passed sex offender civil commitment statutes (Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, New Jersey, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, Washington, and Wisconsin). Texas allows outpatient commitment only, where offenders are treated in an intensely supervised program in the community, and Pennsylvania allows commitment only for juvenile sex offenders who are likely to go on to commit sex crimes as adults.

Sex Offender Civil Commitment Criteria

The constitutionality of sex offender civil commitment was upheld by the U.S. Supreme Court in the 1997 ruling in Kansas v. Hendricks. The Court ruled that states must require that a sex offender exhibit both a mental abnormality and a likelihood to re-offend in order to be committed. A second Supreme Court ruling, in the 2002 case of Kansas v. Crane, established that some degree of inability for a sex offender to control his or her behavior must also exist. This concept is called “volitional impairment” and implies “difficulty if not impossibility” in controlling one's behavior.

To meet criteria to be civilly committed, a convicted sex offender must display (a) a mental abnormality or personality disorder predisposing him to commit sexually violent offenses and (b) a likelihood of future sexual violence. The mental abnormality is generally [Page 721]diagnosed as a disorder listed in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition, text revision (DSM-IV-TR). Because the disorder must “predispose” the offender to sexually re-offend, sex offenders who meet criteria typically display a paraphilia (e.g., pedophilia) or personality disorder (e.g., antisocial personality). The likelihood of future sexual violence is usually determined through the use of actuarial risk assessment instruments, which estimate the probability of re-offense by using a formula incorporating risk factors statistically associated with recidivism. The most commonly used instrument for this purpose is the STATIC–99.

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